Case C-440/08: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 6 October 2008 — F. Gielen, other party: Staatssecretaris van Financiën
Date: 2008-10-06
Institutions: Court of Justice
Subjects: EU Member State, EU national, Netherlands, anti-discriminatory measure, fiscal court, interpretation of the law, taxpayer

C 327/14

EN

Official Journal of the European Union

20.12.2008

for

Reference
from VAT and
a preliminary ruling
Duties Tribunals, London (United Kingdom) made on
29 September 2008 — 1) FG Wilson (Engineering) Ltd,
for
2) Caterpillar EPG Ltd v The Commissioners

Her Majesty's Revenue & Customs

(Case C-431/08)

(2008/C 327/23)

Language of the case: English

care and management has contributed to the errors giving
rise to the customs debt?

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992 estab-

lishing the Community Customs Code (OJ L 302, p. 1).

(2) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying
down provisions for the implementation of Council Regulation (EEC)
No 2913/92 establishing the Community Customs Code (OJ L 253,
p. 1).

Referring court

VAT and Duties Tribunals, London (pursuant to a request from
the Northern Ireland Tribunal Centre)

Parties to the main proceedings

Applicants: FG Wilson (Engineering) Ltd, Caterpillar EPG Ltd

Reference for a preliminary ruling from the Hoge Raad der
Nederlanden (Netherlands) lodged on 6 October 2008 —
F. Gielen, other party: Staatssecretaris van Financiën

(Case C-440/08)

(2008/C 327/24)

Language of the case: Dutch

Defendant: The Commissioners for Her Majesty's Revenue &
Customs

Referring court

Questions referred

Hoge Raad der Nederlanden

1. Were the goods in this case unlawfully removed from
customs supervision within the meaning of Article 203(1) of
the Code (1), by reason of the operation of Article 865 IR (2)?

Parties to the main proceedings

Applicant: F. Gielen

2. If so, was a customs debt on importation thereby incurred

under Article 203 of the Code?

Other party: Staatssecretaris van Financiën

3. If the answers to questions 1 and 2 are in the affirmative,
does the Code, and in particular Article 78(3), permit revi-
sion of the declaration to correct the CPC and if so, are
HMRC required to amend the declaration and to regularise
the situation?

there was a special

4. If there can be no regularisation under Article 78 of the
Code and given that
there was a customs debt under
Article 203 of the Code and given that it is common ground
that
situation as contemplated by
Article 899 IR, was it in the circumstances and in the light
of the findings that follow open to the Tribunal to conclude
that there was no obvious negligence present, so that the
customs debt should be remitted under Article 239 of the
Code and the demand for customs duty should be with-
drawn? In particular, in considering whether there has been
obvious negligence on the part of the trader concerned, are
the competent authorities entitled to take into account the
fact that the revenue authority's own failing in its duty of

Question referred

Is Article 43 EC to be interpreted as meaning that it does not
preclude the application of a provision in a Member State's tax
legislation to profits which a national of another Member State
(foreign taxable person) has derived from a part of his under-
taking operated in the first Member State,
if that provision,
when interpreted in a particular way, indeed makes a distinction
between domestic and foreign taxable persons which — viewed
in isolation — is contrary to Article 43 EC, but the foreign
taxable person concerned has had an opportunity to opt for
treatment as a domestic taxable person and has not done so for
reasons of his own?